Two cardiologists who contend they were fired for reporting quality problems over a four-year period at Detroit Medical Center have sued the six-hospital system, parent company Tenet Healthcare Corp. and four executives for alleged retaliation.
Dr. Mahir Elder and Dr. Amir Kaki, who held various positions at DMC and were top admitters and proceduralists for patients with heart problems, said they reported to DMC executives multiple problems of dirty instruments, unnecessary procedures on patients performed by other doctors, lack of nursing staff, cutbacks of critical lab and support services and failure of top DMC and Tenet executives to investigate alleged incidents of Medicare and Medicaid fraud, according to a 41-page lawsuit filed Monday in U.S. District Court in Detroit.
The lawsuit says Elder and Kaki's quality and fraud complaints were ignored by DMC executives and that on Oct. 1 they were fired from their administrative duties, barred from serving on hospital quality-of-care committees and publicly disparaged by top DMC executives.
DMC said in a statement: "We do not comment on pending litigation. As we've said previously, we asked Drs. Elder and Kaki to step down from their administrative leadership roles in the DMC cardiovascular service line in October 2018 due to violations of our standards of conduct. Any suggestion that these leadership transitions were made for reasons other than violations of our standards of conduct is false."
Tenet is a Dallas-based for-profit chain that owns 68 hospitals, including DMC, which it acquired in 2013 from Vanguard Health Systems.
Over the past several years, Crain's has reported on a number of the problems at DMC that include continuing problems with surgical instruments at Detroit Receiving Hospital and Harper University Hospital. Last fall, state and federal quality inspectors visited DMC after the cardiologists were terminated and found multiple problems. DMC has been informed it is now subject to unannounced inspections by the Michigan Department of Licensing and Regulatory Affairs.
DMC awaits a final decision on whether the problems warrant removal from the Medicare and Medicaid program from the recent inspection by the CMS. In addition, an accreditation inspection decision on DMC's cardiology fellowship program is expected in April.
The cardiologists' lawsuit against DMC also is in addition to an ongoing federal investigation into DMC's alleged overpayments to on-call cardiologists, poor-quality care, lack of supervision that led to patient deaths, and the improper use of employed nurse practitioners for private admitting doctors. The investigation by the U.S. Department of Justice in Detroit was disclosed in February 2018 by Tenet in a federal securities filing. The company has declined interviews on the subject.
Deborah Gordon, an attorney in Bloomfield Hills representing Kaki and Elder, said the cardiologists, who still hold medical staff privileges at DMC and also contend they continue to be retaliated against by DMC as staff doctors attempting to treat their patients, allege a variety of federal and state law violations.
Gordon said allegations listed in the lawsuit include retaliation and false public statements about them under the U.S. and Michigan false claims acts, unpaid compensation under the state fair labor standards act and the right to review employment files under the state Bullard-Plawecki Employee Right to Know Act.
"This is a wrongful discharge lawsuit based on my clients' refusal to go along with what they were continually observing — significant patient safety issues," said Gordon. "Tenet has made it very clear, over and over again, that profits come first. Nevertheless, they are a health care provider, and have an obligation to their patients."
Gordon said Kaki and Elder are high-quality cardiologists, never been sued or disciplined, who have had their careers and reputation damaged by DMC and Tenet. She said the ongoing retaliation has limited their ability to care for their patients at DMC.
The lawsuit also names three DMC executives and one Tenet executive. They are Dr. Anthony Tedeschi, who has been CEO of DMC since January 2017; Scott Steiner, who was CEO of the three DMC adult hospitals from 2012 until February 2019; Eric Evans, president of Tenet's hospital operations from March 2016 to December 2018; and Conrad Mallett Jr., CEO of Sinai Grace Hospital since August 2017. Steiner and Evans are no longer with Tenet.
On Oct. 1, Elder, Kaki and Dr. Taman Mohamad, who was chief of cardiology and medical director of the cardiac care unit at DMC Detroit Receiving and is not a party of the lawsuit, were terminated from their administrative duties by Steiner. The firings, which the hospital said were for an unspecified violation of Tenet's code of conduct, followed an investigation of the doctors' interactions with nurses and other doctors by Medicare compliance attorneys with Latham and Watkins, a Los Angeles-based law firm.
"After an extensive review of complaints received from physicians and team members, DMC has asked Dr. Mahir Elder, Dr. Amir Kaki and Dr. Tamam Mohamad to step down due to violations of our standards of conduct," Steiner, who at the time was CEO of DMC Detroit Receiving, DMC Harper University and DMC Hutzel Women's hospitals, said in an email to 5,000 DMC employees and in a statement to the press.
Kaki and Elder initially thought the investigation was about looking into the quality and false claims complaints they had lodged for years.
"It has come to my attention and surprise that this recent Tenet investigation is a (sham)," Elder said in an Oct. 1 email to Tedeschi and Evans. "Many of the staff have expressed serious concerns of the true motive. Many more have not been interviewed to speak up freely. Your investigation wasn't about my years long complaints regarding patient safety. Rather you have been building a case to terminate my employment and privileges at DMC."
Gordon said the lawsuit also will seek to open Kaki and Elder's personnel files to determine the contents of the alleged code of conduct violations that prompted their firings. She said DMC has refused to release the employee files.
Since they were fired in October, Kaki and Elder allege DMC has continued to retaliate against them for their ongoing roles as on-call Cardio Team One cardiologists and medical staff physicians. Cardio Team One is a 24/7 program to treat emergency heart problems.
The lawsuit said Kaki and Elder have been prohibited from participating in peer review and quality assurance committees. They are the only staff cardiologists treated this way, the lawsuit said. They also have had their DMC email accounts terminated and their pagers removed. They are prohibited from teaching or giving lectures and have been refused pay for on-call services.
Elder, who now practices at Beaumont Health hospitals and trained Kaki and dozens of other interventional cardiology fellows over the past 11 years, was director of cardiac care, ambulatory services and the endovascular medicine program at DMC Heart Hospital since 2008. He also was assistant program director of interventional fellows at DMC and started Michigan's first pulmonary embolism response team in 2016.
Elder is a two-time Crain's Health Care Hero and was voted "Teacher of the Year" by cardiology fellows for 10 consecutive years.
Kaki, who was recruited in 2012 by now Detroit Mayor Mike Duggan when he was CEO of DMC, is now practicing at Ascension Providence Hospital in Southfield and Ascension St. John Hospital in Detroit where he is director of complex higher-risk indicated patients.
Among other duties at DMC, Kaki was hired in 2014 as director of cardiac catheterization services unit at DMC Heart Hospital, also known as DMC Cardiovascular Center, which is located at DMC Harper-Hutzel Hospital. He also is a professor of medicine at Wayne State University School of Medicine. In 2018, Kaki was also appointed as director of DMC's anticoagulation clinic.
Kaki, who like Elder published many clinical research studies, practiced at DMC Sinai-Grace Hospital under Mallett, a former Michigan Supreme Court chief justice.
DMC Heart Hospital treats large numbers of patients with severe cases of heart disease, heart failure and high blood pressure. However, since DMC took actions against the doctors, cardiology volumes have declined by more than 30 percent. Dr. Ted Schreiber, former president of DMC Heart Hospital, who was DMC's largest admitter, resigned in protest last December and is now practicing at Ascension Health hospitals.
A history of federal fraud settlements
The lawsuit against DMC charges that Tenet also violated a previous agreement with the Department of Justice by failing to "self-report" all violations of law or regulations and any questionable conduct.
In 2016, Tenet agreed to pay a $514 million dollar fine for improperly paying doctors to refer Medicaid patients under a kickback scheme for obstetric and other medical services in Georgia and South Carolina.
But Tenet's problems with federal fraud laws goes back to at least 2006, when the Dallas-based company agreed to pay $725 million to settle allegations of illegal Medicare payments to Tenet hospitals in Los Angeles, San Francisco, St. Louis, New Orleans, Memphis and El Paso. In 2012, Tenet also agreed to pay $43 million to resolve allegations that it violated the False Claims Act by overbilling Medicare for inpatient rehabilitation services in its Atlanta hospitals from 2005 to 2007.
As part of the previous settlements, Tenet has been under a five-year corporate integrity agreement that required the company to provide various compliance and financial reports to the government.
"Senior management, including these defendants, has failed to (investigate and report) and has blatantly allowed legal violations to occur in order to generate more income by cutting medically necessary support and services and allowing unnecessary medical procedures, among other things," said the lawsuit.
Some of the allegations in Elder and Kaki's lawsuit also include that DMC and Tenet:
- Billed Medicare and Medicaid for procedures knowing that the surgical equipment used in many procedures were not sterile.
- Put patients at risk of contracting life-threatening diseases that include HIV, hepatitis B and C, fungal infections, pneumonia, and other infections.
- Submitted claims for payments to Medicare and Medicaid that were false or fraudulent.
- Allowed physicians to conduct medically unnecessary procedures.
As they became aware of them, Kaki and Elder reported multiple incidents of quality violations and false claims to Tedeschi, Steiner and Tenet officials, the lawsuit said. "This reporting and failure to acquiesce reached a head in 2018, leading to the terminations of plaintiffs," the lawsuit said.
For example, Kaki and Elder reported that physicians had opened up sterilized surgical instrument packages only to find unsterile, dirty instruments, some with visible tissue and blood. The last time problems were reported was one month before they were terminated, the lawsuit said.
"After (Kaki and Elder) were terminated on October 1, 2018, (DMC and Tenet officials) falsely made representations to the public that their facilities and instruments were sterile."
The lawsuit also described several instances of how DMC cost-cutting led to quality of care problems and at least one potential patient death and an unsafe environment for patients.
In early 2018, DMC unilaterally removed the "stat blood lab from the cardiac catheterization unit at Harper Hospital" as a cost-cutting measure.
"This created an immediate and serious patient safety issue, as time is of the essence in receiving blood work results for cardiac patients," the lawsuit said. "One patient died because his high potassium levels were not reported to the cardiac team for hours."
After Kaki, Elder and other doctors complained, Steiner agreed on March 8, 2018, to move the stat lab back to the CCU. The lawsuit does not specify how long the CCU was without the stat blood lab.
The lawsuit also alleges that unnecessary and dangerous cardiac medical procedures being performed by other physicians at DMC for the primary goal of generating income from Medicaid and Medicare. Kaki and Elder alerted DMC and Tenet of the problems and asked for investigations. However, the complaints were turned around and used by DMC as partial rationale for the terminations, the lawsuit said.
Some of the complaints Elder and Kaki allege in the lawsuit include:
In late 2015, a patient was admitted who suffered from pulmonary embolism. The patient did not medically qualify for aggressive PE intervention, and such intervention was medically unnecessary. In spite of this, and with the procedure being very complicated, two inexperienced physicians who were unable to identify the dangerous situation went forward with the intervention. The patient suffered from complications and bled to death.
- A patient died on Feb. 22, 2016, when an unnecessary procedure was performed on him. The patient did not meet appropriate criteria and did not fit clinical protocols for the procedure. Two more procedures were later performed on the patient based on the poor result, which created complications. Elder filed a written complaint with DMC compliance. No response was received.
- Several patients were subjected to unnecessary carotid stent procedures. Some physicians created false dictation as to the percent of the blockage that existed in order to justify the procedure.
- In May of 2016, an 85-year-old demented patient died due to an unnecessary procedure being performed experimentally by physicians attempting the procedure for the first time.
- One physician, who is now under investigation by the FBI, performed a procedure without consent on a young female patient who died. The physician then tried to, and did, change and manipulate medical records to cover up the basis for the death. Elder tried on multiple occasions to bring this physician's dangerous practices to DMC's attention.
"DMC's lack of action against (this doctor) is ethically shocking to me," Elder told DMC officials in an email. "It is high time that DMC stop worrying about profits and stay focused on patient safety, compliance … and longevity … I strongly believe we have a work environment that is not only increasingly difficult to work in, but more importantly a dangerous one for patients because of physicians…who believe there is no accountability."
Kaki contends DMC owes him at least $80,000 in withheld wages for services performed as part of Cardio Team One and as the director of DMC's anticoagulation clinic during 2018. Elder alleges DMC owes him at least $30,000 for services rendered for nuclear testing to the benefit of DMC for DMC employees. The lawsuit also asks for unspecified compensation from DMC for work in the hospital's continuity clinic, training fellows and for administrator fees.
Under the False Claims Act, Kaki and Elder are asking for reinstatement to their former positions, double damages for back pay and interest, along with attorneys' fees.
"Fired cardiologists sue DMC, Tenet, alleging retaliation for quality complaints" originally appeared in Crain's Detroit Business.